Indiana Pipe Line Co. v. Christensen

• Decision Date: 24 April 1924
• Docket Number: 23,957
• Citation: 143 N.E. 596,195 Ind. 106
• Parties: Indiana Pipe Line Company v. Christensen
• Court: Indiana Supreme Court

143 N.E. 596

195 Ind. 106

Indiana Pipe Line Company v. Christensen

No. 23,957

Supreme Court of Indiana

April 24, 1924

Rehearing Denied July 3, 1924.

1 ACTION.---Joinder.---Separate Torts.---Supplemental Complaints.---A complaint and supplemental complaint alleging damages from crude oil leaking out of a pipe line, damaging farm lands, growing crops and injuring and killing live stock, during different years is not erroneous for combining and trying separate and distinct torts in one action, since the alleged acts constituted a single complete wrong which could be compensated in a single award. p. 113.

2 PLEADING.---Theory.---Determination.---The theory of a pleading is determined by its leading and most apparent facts. p. 114.

3. PLEADING.---Supplemental.---Discretion of Court.---It is within the discretion of the court (408 Burns 1914, 399 R. S 1881) to allow supplemental pleadings showing facts which occurred or acts done after the filing of the original, provided together they form but a single pleading. p. 114.

4. NUISANCE.---Action for Damages.---Pleading.---Negligence.---A complaint and supplemental complaint alleging damages from crude oil leaking out of a pipe line, damaging farm lands, growing crop and injuring and killing live stock, during different years, stated a cause of action for the negligent operation of a lawful business resulting in a continuing nuisance, so that whether the wrong doer was careful or negligent in the manner of maintaining the nuisance was immaterial. p. 115.

5. NUISANCE.---Continuing Nuisance.---Pleading.---Sufficiency.---A complaint alleging negligence in opening pipe lines in 1914 without making provisions to control the oil which might escape and in failing to maintain the pipe lines against leaks during 1914 and 1915, and in permitting oil to escape, supplemented by facts showing a continuation of the same negligence until March 1, 1920, charges the maintenance of a continuing nuisance. p. 116.

6. JUDGMENT.---Damages.---Continuing Nuisance.---Subsequent Actions.---Presumptions.---In an action for damages for loss of rents to farm lands caused by a nuisance, if the nuisance is a continuing abatable one, an action prosecuted to a finality will not bar another action to recover the loss of rents for succeeding years, when the nuisance has resulted in further injury, as the law will presume that when the cause of the injury is removed, the injurious consequences will cease. p. 116.

7. JUDGMENTS.---Damages.---Continuing Nuisance.---In an action for damages for maintenance of a continuing nuisance, per- mitting crude oil to leak out of pipe lines, damaging farm lands, growing crops and injuring and killing live stock, the judgment should be limited to the damages actually accrued or sustained during the continuation of the nuisance, thus obviating any opportunity for including speculative or prospective damages. p. 116.

8. NUISANCE.---Damages.---Pleading.---Presumptions.---Rebuttal.---In an action for damages caused by the maintenance of a nuisance, permitting crude oil to leak out of pipe lines, the complaint alleging depreciation of rental value, injury and death of live stock during certain years, supplemented by facts showing that the cause of the injury had not been removed nor had its injurious consequences ceased, was effective to rebut the presumption that when the cause of the injury is removed, the injurious consequences will cease. p. 117.

9. TRIAL.---Instruction.---Harmless Error.---The refusal to give requested instructions that are substantially embodied in those given is not reversible error. p. 118.

10. DAMAGES.---Negligence.---Reasonable Care.---A party injured through the negligence of another must use reasonable care to minimize his damages, and his failure to do so is a matter of mitigation. p. 120.

11. TRIAL.---Instructions.---Damages.---Negligence.---Reasonable Care.---An instruction that if the plaintiff knew the harm that would result from drinking crude oil and neglected to use reasonable care to keep his stock away from it, he cannot recover in an action for injury to the stock, was properly refused because it was not made to apply to live stock damaged and killed because of plaintiff's negligence after he knew of the dangerous effect of the oil, there being no evidence that plaintiff knew the effect of drinking crude oil by live stock until after some of the stock had died. p. 120.

12. NUISANCE.---Damages.---Evidence.---Measure of Damages.---Supplemental Complaint.---In an action for damages for maintenance of a nuisance, permitting crude oil to leak out of pipe lines, any evidence pertaining to cattle said to have been injured during the period of time covered by the complaint, relative to recovery or want of recovery prior to the trial, was competent as bearing on the measure of damages, whether the facts be pleaded by way of supplemental complaint or not. p. 122.

13. APPEAL.---Review.---Instructions.---Presumptions.---The giving of an erroneous instruction is presumed to be harmful unless the record affirmatively shows that it was not. p. 123.

14. APPEAL.---Review.---Refusal of Instructions.---Harmful Error.---Appellant must show that the refusal of requested instructions was harmful error. p. 123.

15. NUISANCE.---Pipe Lines.---Negligence.---Liability.---The business of transporting oil through pipes across this state has legislative approval, but a lawful business negligently conducted is not a lawful business lawfully conducted. p. 125.

16. TRIAL.---Misconduct of Counsel.---Discretion of Trial Court.---Statement by counsel charged a witness with perjury during examination, and made remarks belittling and slurring another witness, tending to prejudice and divert the minds of the jury from the issues, was not reversible error, as matters of conduct of counsel are left to the discretion of the trial court. p. 127.

17. APPEAL.---Misconduct of Counsel.---Verdict.---The Supreme Court will not interfere with the final result of the trial because of misconduct of counsel, unless from the whole record it can say that the alleged misconduct was harmful to the complaining party in that it was probably the means of securing a wrong verdict. p. 127.

From LaPorte Circuit Court; Norman Wolf, Special Judge.

Action by Christian Christensen against the Indiana Pipe Line Company. From a judgment for plaintiff, the defendant appeals.

Affirmed.

H. D. Bushnell, Holman, Bernetha & Miller, Simmons, Dailey & Simmons, Kelley & Galvin, Osborne, Osborne & Link and Myers, Gates & Ralston, for appellant.

George Burson and Darrow & Rowley, for appellee.

Myers J. Ewbank, C. J., dissents. Travis, J., not participating.

OPINION

Myers, J.

The parties to this appeal are here for the second time. Indiana Pipe Line Co. v. Christensen (1919), 188 Ind. 400, 123 N.E. 789. On the first appeal, the judgment was reversed, this court saying, p. 406: "There can be no doubt that it was the theory of the plaintiff below that the injury to the real estate was of a permanent character, affecting the value of the farm as a whole, and that the trial court adopted that theory on the trial." Again, p. 412: "The wrongful act on which the action is based is not treated as a continuing nuisance, but a completed tortious act, resulting in permanent injury to the land affected. Under the pleadings and the evidence in this case, the recovery must be limited to damages resulting to the land from the oil which had been permitted to flow thereon prior to the commencement of the action; but the entire damage resulting therefrom must be recovered in one action." Attention was then briefly drawn to the theory relied on for a recovery, and the want of evidence tending to prove the permanent nonproductiveness of the soil, resulting in the conclusion that the damages awarded by the verdict were based on an item of damage which had no evidence to sustain it. We deem this general reference to our former decision quite sufficient to show generally the real questions presented and the rulings thereon.

In May, 1915, appellee filed a complaint demanding damages on account of injury to live stock from drinking water polluted with oil and eating oil-covered grass as a result of escaping oil from appellant's disconnected pipe line. This complaint was abandoned. On September 25, 1916, an amended complaint and supplemental complaint thereto was filed and the issues formed thereon resulted in a judgment which, on June 27, 1919, was reversed. Thereafter, on March 1, 1920, by leave of court first obtained, appellee filed a second paragraph and supplemental complaint. At the close of appellee's evidence in chief the original and supplemental complaint of September 25, 1916, was dismissed, and the cause proceeded to judgment on the issues formed by an answer of general denial and by five special paragraphs, each predicated on the six-year statute of limitations, and reply by a general denial. A trial before a jury resulted in a verdict in favor of appellee for $ 10,000, and judgment followed in accordance with the verdict.

Appellant, for a reversal of this judgment, relies on asserted errors of the trial court in overruling its motion to strike out appellee's second supplemental complaint; in overruling its motion to strike out certain parts of the second supplemental complaint; in overruling its motion to separate the supplemental complaint from the second paragraph of complaint and docket it as a separate cause of action; and in overruling its motion for a new trial.

The second paragraph, and what was designated "supplemental complaint to the second paragraph of complaint" were filed March 1, 1920, and we will refer to them as "complaint" and "supplemental complaint."

The complaint,...